Court Strikes Down Hempstead Town Zoning Board Condition Requiring Owner-Occupancy of Two-Family Dwelling

Monday, December 17, 2018

Ruling Calls into Question Legality of Restrictions Posed on Thousands of Homeowners by Municipalities

UNIONDALE, NEW YORK — Sahn Ward Coschignano, PLLC (SWC) has announced that Christian Browne, a Member and Partner with the Firm, successfully represented a homeowner before the Town of Hempstead Board of Appeals. The Firm’s client sought to annul a condition to a variance granted by the Town of Hempstead Board of Appeals that required one unit of a two-family home to be “owner-occupied.”

The property that was the subject of the variance application is known as 1541 Bellmore Road in Bellmore. The Board had originally granted a variance to allow the dwelling to be used as a two-family house on April 25, 1956. However, because of a failure of a former owner to file “variance renewal” paperwork with the Town, the two-family variance grant lapsed in 1996. Nonetheless, the house remained a two-family dwelling.

In 2017, Kenneth Sullivan, the house’s now owner and the Firm’s client, filed an application with the Board, seeking to revive the lapsed variance and re-legalize the house as a two-family dwelling. On June 18, 2018, the Board approved Mr. Sullivan’s application, but imposed several conditions, including a condition requiring that the property owner live in one of the two units in the dwelling.

Mr. Browne argued that the “owner-occupied” condition is illegal and unenforceable because a zoning board is not permitted to regulate who uses or owns a property, but only how such property is used. On December 10, 2018, Denise L. Sher, Associate Justice, New York State Supreme Court, Nassau County, agreed and annulled the condition, holding that the condition is illegal because it pertains to “who owns and occupies the subject premises and not the real estate itself. Conditions which relate not to the real estate involved, but to the person who owns and occupies the subject real estate, are invalid.”

“The Court applied the law properly and we are pleased with the outcome,” Mr. Browne said. “A zoning board may only regulate the use of land, and not by whom it is used. Thus, this ruling calls into question the legality of these kinds of conditions that are commonly imposed on homeowners, not only in the Town of Hempstead, but by municipalities throughout the region.”

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About Sahn Ward Coschignano, PLLC

Sahn Ward Coschignano, PLLC is one of the region’s most highly regarded and recognized law firms. The firm is committed to providing its clients with the highest quality representation, counsel, and advice. Practice areas include zoning and land use; real estate law and transactions; litigation and appeals; municipal law and legislative practice; cellular and telecommunications law; environmental, corporate, labor and employment law; tax certiorari and condemnation; matrimonial practice; and estate planning. The firm strives to assist its clients in a wide array of issues, serving them with skill and experience, resourcefulness, and responsibility. For more information, call (516) 228-1300 or visit